Are you in a De Facto Relationship?
8th November 2017
By Lisa Wagner
Are you wondering whether your relationship is a bona fide de facto relationship?
Although it may be assumed that someone in a de facto relationship has the same rights as someone in a marriage, what sometimes happens when your relationship falls apart is that your partner alleges that they were never in a bona fide de facto relationship with you.
You may have been living with your partner and been in a relationship for more than two years but this may not be enough on its own to qualify your relationship as being recognised by the law as a bona fide de facto relationship.
So what does the law define as a de facto relationship?
Without a marriage certificate or the registration of your de facto relationship, the onus is on you to prove that your relationship existed under the laws of a State or Territory.
(1) A person is in a de facto relationship with another person if:
(a) the persons are not legally married to each other; and
(b) the persons are not related by family (see subsection (6)); and
(c) having regard to all the circumstances of their relationship, they have a relationship as a couple living together on a genuine domestic basis.
The actual meaning of the definition whilst first appearing simple can get complicated.
So what considerations constitute a ‘genuine domestic basis’?
Part 2 of section 2AA of the Family Law Act 1975 sets out the criteria namely:
(a) the duration of the relationship;
(b) the nature and extent of their common residence;
(c) whether a sexual relationship exists;
(d) the degree of financial dependence or interdependence and any arrangements for financial support between them;
(e) the ownership, use and acquisition of their property;
(f) the degree of mutual commitment to a shared life;
(g) whether the relationship is or was registered under a prescribed law of a State or Territory as a prescribed kind of relationship;
(h) the care and support of children;
(i) the reputation and public aspects of the relationship.
This all sounds quite standard and reasonable but where it gets tricky is determining how much consideration a Judge may give to each of the criteria given that the court, in determining whether a de facto relationship exists, can have regard to such matters, and attach such weight to any matter, as may seem appropriate to it in the circumstances of the particular case.
Considering other cases helps us see how these criteria have been applied by the Court to ascertain if your relationship meets this criteria of living together on a “genuine domestic basis’.
One of the cases that has really shaken up the status of de facto parties having to prove their relationship is the case of Jonah and White  FamCA 221. In this case there was a long relationship of 17 years, an exclusive sexual relationship apart from the Respondent also being married at the time and having a few one night stands and the Respondent contributed and financially supported the Applicant over 11 years.
Despite these factors his Honour at paragraph  said ‘In my opinion, the key to that definition of being in a de-facto relationship is the manifestation of a relationship where “the parties have so merged their lives that they were, for all practical purposes, ‘living together’ as a couple on a genuine domestic basis” Further at paragraph  ‘In my opinion, the key to that definition (of being in a de-facto relationship) is the manifestation of a relationship where “the parties have so merged their lives that they were, for all practical purposes, ‘living together’ as a couple on a genuine domestic basis”.
The fact the parties had kept their finances separate, each maintained their own household, there was no evidence of a relationship between the applicant and the respondent’s children, there was no mingling with each other’s friends as a couple, and they did not spend time with each other’s extended families, was enough to support the notion that there was not a merger of lives or ‘coupledom’ between the parties to evidence their relationship was on a ‘genuine domestic basis’.
This case also considers the amendments made to the Family Law Act in March of 2009 which allowed the inclusion of another type of de facto relationship and this is one that allows those in a relationship with someone who may also be married or a same sex relationship at the same time as another relationship to be recognised under the law.
Therefore, your wife/husband and mistress/paramour may both have a right to make a claim against you if your relationship breaks down.
Another case where the parties were this time found to be a de-facto couple on a ‘genuine domestic basis’ is the case of Asprey & Delamarre  FamCA 214. Despite conflicting evidence, her Honour found there was a relationship of eight (8) years, the parties lived in separate houses apart from a period of weeks after the birth of each of their children, they had considered living together and undertook searching for a home. It was found that they both had the intention to spend time together as a family just each on their own terms. Both parties were self-employed and maintained separate bank accounts. When they were together both parties shopped together and at paragraph  “At no time were the parties indifferent to each other or their shared life”. They were both involved with the care of their two children and involved with the respondent’s sons from his previous marriage. They spent time with each other’s families and held social events where they were known as a couple. In conclusion her Honour Clearly J’s judgement referred to the “merger of two lives into coupledom” from Jonah and White (2011) 45 Fam LR 460 at  that allowed her to infer that the parties were able to demonstrate a relationship of mutual commitment to a joint life and the notion of coupledom that determined the parties were in fact in a relationship on a genuine domestic basis.
It is important to remember that Applications to the Court must be made within two (2) years from the end of a de-facto relationship if an agreement cannot be finalised and documented.
If you would like assistance in understanding more about de facto relationships and your entitlements or simply want advice about your separation, please contact us on 94370010 or firstname.lastname@example.org to discuss in complete confidence. We are conveniently situated in St Leonards on Sydney’s Lower North Shore and have a team of experienced and caring professional Family Lawyers available to help you.
These posts are only intended as an overview or comment on current issues that may interest you and are not legal advice. If there are any matters that you would like us to advise you on, then please contact us.